The Chair explained there was a lot of material on the agenda. Most of the proposed amendments to the rules are based on the time computation amendments made to the federal rules. The Chair said there was also some old business to discuss. The Chair said it would be preferred to get all of the time changes completed, rather than have some proposed time change amendments left over for the next meeting. If all of the time amendments were
approved, they would be included in the Annual Rules Package.

Staff explained the amendments to Rule 6 were consistent with the federal time computation amendments and intended to simplify time-counting under the procedural rules. To further simplify time-counting, most periods of less than 30 days were changed to multiples of 7 days, so that deadlines will usually fall on weekdays.

Staff also explained comments received from attorney Arnold Fleck. Mr. Fleck believes there is a conflict between proposed Rule 6(a)(6) and 6(e)(3). Mr. Fleck commented that a document served electronically after 5:00 p.m. cannot be treated as having been both
served by mail on the date of transmission and as also having been served on the first business day after the date of transmission. Mr. Fleck suggested that proposed Rule 6(a)(6) regarding electronic service be deleted.

Judge McLees MOVED to approve the amendments to Rule 6. Judge Herauf seconded.

A member said there does appear to be a conflict in the rule as stated by Mr. Fleck. A member asked if the federal rule has a provision on electronic service. Staff said the federal rule does not have a provision on electronic service.

Judge Nelson MOVED to delete lines 42-44. Mr. Hoy seconded.

A member asked if three days would be added for electronic service. Other members said three days would be added because electronic service would be treated as if service were made by mail. A member said it might be helpful if that were clarified in the rule.

A member asked if there really was a conflict. If service is made electronically before

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5:00 p.m., it is treated as served on that day. If service is after 5:00 p.m., it is treated as served on the next day. A member said that conflicts with service by mail. One could electronically serve something at 5:01 p.m. and it would be treated as served the next day. If you put something in the mailbox at 5:01 p.m. it is treated as served on that same day. Staff said that could have an effect on deadlines.

The motion to amend CARRIED.

Mr. Plambeck MOVED to amend page 163, to delete lines 78-79, to insert “Made
Electronically or” after “Service” on line 72, and to insert “electronically or” after “made”
on line 74. Judge Herauf seconded.

A member said lines 78-79 may be necessary to figure out when the plaintiff acted.

Mr. Boschee MOVED to amend the motion to retain lines 78-79. Judge McLees seconded. The motion to amend the motion CARRIED.

By unanimous consent, the text “or” after “electronically” on page 163, lines 72 and
74 was replaced with a comma.

The motion to amend CARRIED.

The motion to approve the proposed amendments to N.D.R.Civ.P. 6 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.

Staff explained that the proposed amendments to Rule 4 were consistent with the
federal form and style amendments and intended to make the rule more easily understood and to make style and terminology consistent throughout the rules. Staff said Rule 4 and Fed.R.Civ.P. 4 differ substantially. Form and style amendments were proposed. Staff also explained the time period in proposed Rule 4(e)(4) was changed from 10 to 14 days.

Judge Kleven MOVED to approve the amendments to Rule 4. Judge Herauf seconded.

Staff explained that the proposed amendments to Rule 23 were consistent with the
federal form and style amendments and intended to make the rule more easily understood and to make style and terminology consistent throughout the rules. Staff said Rule 23 and Fed.R.Civ.P. 23 differ substantially. Form and style amendments were proposed.

A member asked whether anything was changed by amending the phrase “forms of relief, equitable, declaratory, or monetary” on page 110, lines 22-23, to “forms of equitable,
declaratory, or monetary relief.” A member said it did not seem to substantively change anything.

Judge McLees MOVED to approve the amendments to Rule 23. Judge Fontaine
seconded.

The motion to approve the proposed amendments to N.D.R.Civ.P. 23 and to send the
rule to the Supreme Court as part of the Civil Rules Package CARRIED.

Staff explained that the proposed amendments to Rule 39.1 were consistent with the
federal form and style amendments and intended to make the rule more easily understood and to make style and terminology consistent throughout the rules. Staff said there is no federal counterpart to Rule 39.1; therefore, form and style amendments were proposed. Staff also explained the time period in proposed Rule 39.1(a)(2) was changed from 10 to 14 days.

Judge Kleven MOVED to approve the amendments to Rule 39.1. Judge McCullough seconded.

A member asked about the phrase “the parties must continue to file with the clerk of court for the county of venue” on page 140, lines 13-14. The member asked whether there
needed to be clarification about what is filed. A member said it means to file everything, and that nothing needed to be added about what is to be filed.

Judge McLees MOVED to amend page 142, line 46, to add the phrase “location of

A member said the proposed phrase “administration of justice” on page 141, line 29, seems to mean something different than “ends of justice,” which is how the rule currently reads. The member said the phrase “administration of justice” may give a judge more discretion to change venue than the phrase “ends of justice.” A member said “administration” may be the “means” rather than the “ends.”

A member asked whether the change from 10 days to 14 days on page 140, line 16, was too big of a change. Staff said under the current rule, weekends and holidays are excluded from the computation of time for periods under 11 days, and under the proposed amendments, weekends and holidays are included, so the change probably would not extend the period at all.

Judge Schneider MOVED to amend page 142, lines 46-47, to delete the phrase “of the place of trial.” Judge Herauf seconded. The motion to amend CARRIED.

The motion to approve the proposed amendments to N.D.R.Civ.P. 39.1 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.

Staff explained the proposed amendments to Rule 8.2(e). Staff explained the
amendments are based on the timing provisions in Minn. Gen. R. Prac. 303.03. The
proposed amendment allows a moving party to respond if the opposing party raises new issues in its response to the initial motion.

A member asked about the phrase “new issues” on page 147, line 77. A member said it would be helpful if this phrase was defined.

Ms. Ottmar MOVED to approve the amendments to Rule 8.2 and to amend page 147,
line 76, to replace “14” with “21,” line 79, to replace “ten” with “14,” and lines 82 and 83,
to replace “five” with “seven.” Judge Nelson seconded.

Mr. Hoy MOVED to amend the motion to move the sentence on lines 82-84, beginning with “If the movant” to the end of line 79, to flip proposed subparagraphs (B) and

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(C), and to delete “or New Issues” on line 80. Ms. Ottmar seconded.

The motion to amend the motion CARRIED. The motion to amend CARRIED.

A member said the focus in these proceedings is on the best interests of the child, and the proposed amendments appear to improve the rule.

A member asked how “new issues” should be defined in the rule. A member said that under the rule, interim orders are issued on the basis of four issues: (1) support; (2) parental
rights and responsibilities; (3) attorney’s fees and costs; and (4) use of property.

A member said there was a 1997 North Dakota Supreme Court case stating that ex parte interim orders apply to post-judgment proceedings, for example, a change of custody.
Subsequent to that decision, the legislature passed N.D.C.C. § 14-09-06.6, which says a party seeking to modify a custody order has to serve and file moving papers and give notice to the opposing party. The member said the statute seems to say the ex parte process is not available in post-judgment proceedings. The member said an argument could be made that there is no right to ex parte relief to modify in any circumstance. The member said this issue should be cleared up, either in the legislature or in the rule.

A member said that judges handle ex parte motions in post-judgment proceedings differently. The member said some judges will allow an ex parte motion, some will allow an ex parte motion if there has been a motion filed under N.D.C.C. § 14-09-06.6, and some
judges will not allow an ex parte motion in a post-judgment proceeding.

A member said that the affidavit practice in the rule should also be discussed. A member said it is handled differently throughout the state, as far as how much can come in on cross-examination. A member said there is a case assignment order in Cass County that requires parties to notify the other party about who is going to be cross-examined.

A member said if an affiant is not available to be cross-examined, their affidavit should not be admitted. A member said some affiants never get cross-examined at the hearing, and may have to miss a half day of work or pay daycare for nothing. A member said Cass County’s process seems to be practicable.

For the September meeting, staff was instructed to draft some amendments regarding affidavit practice and to research whether the ex parte process applies in post-judgment

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modifications.

Ms. Ottmar MOVED to amend the explanatory note on line 101 to include a definition of “new issues.” A “new issue” was defined as “any issue listed in subdivision (b) not raised by the moving party.” Judge Herauf seconded. The motion to amend CARRIED.

A member asked whether the respondent should be required to file a motion if the respondent raises new issues. The member said Minnesota requires a motion to be filed along with a filing fee. A member said it probably does not matter how the respondent raises
new issues, whether the new issues are raised in a motion and affidavit, or an affidavit alone, as long as it is filed on time.

The motion to approve the proposed amendments to N.D.R.Ct. 8.2 and to send the rule to the Supreme Court as part of the Annual Rules Package CARRIED.

A member discussed the phrase “as the court directs” on page 116, line 154, which was deleted under the proposed amendments. The member said the phrase appears to give a court discretion as to what notice is to be given and how it is to be given in a class action.
The member said that without that phrase, notice would have to be given of any step in the action. The member said this would be extremely expensive.

Mr. Plambeck MOVED to reconsider Rule 23. Mr. Hoy seconded.

Mr. Plambeck MOVED to amend page 116, line 154, to restore the phrase “as the court directs.” Mr. Hoy seconded. The motion to amend CARRIED.

Staff explained that the proposed amendments to Rule 14 were based on the time period amendments made to the federal rules.

Judge McCullough MOVED to approve the amendments to Rule 14. Judge Herauf
seconded.

Mr. Boschee MOVED to amend page 193, lines 53-54, to replace “for” with “before,”
to replace “to” with “must” before “obtain,” and to delete the phrase “after serving its original answer.” Mr. Plambeck seconded. Motion CARRIED.

A member asked about the meaning of lines 8-10 on page 191. A member said a defendant can bring a third-party action within 14 days of serving its original answer. The member said if the defendant serves a third-party complaint more than 14 days after its original answer, the defendant must obtain the court’s approval.

Mr. Plambeck MOVED to amend page 191, line 9, to replace “files the” with “seeks to commence a” and to replace “complaint” with “action.” Judge Herauf seconded. The motion to amend CARRIED.

Mr. Plambeck MOVED to amend page 191, line 8, to delete the term “But.” Ms. Ottmar seconded. The motion to amend CARRIED.

Judge Reich MOVED to amend page 193, line 53, to replace “to file” with “if it seeks
to commence” and replace “complaint” with “action.” Judge Schneider seconded. Motion CARRIED.

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The motion to approve the proposed amendments to N.D.R.Civ.P. 14 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.

Staff explained that the proposed amendments to Rule 15 were based on the time period amendments made to the federal rules, and on other 2009 amendments made to the federal rule. The amendment to Rule 15(a)(1)(A) and (B) based on the 2009 federal
amendment, on lines 6-10, limits the time when a party may amend a pleading to which a responsive pleading is required once as a matter of course.

Judge Herauf MOVED to approve the amendments to Rule 15. Ms. Ottmar seconded.

Mr. Hoy MOVED to retain the original text with form and style amendments on lines 6 and 7-10, but keep the 21 day time period. Mr. Plambeck seconded. The effect of the proposed amendment would be to not adopt the 2009 substantive amendment made to the federal rule.

A member said that under the federal amendment, a defendant could answer a complaint and then get served with an amended complaint if the complaint was amended within 21 days of serving it. The defendant would then have to file another answer.

A member said that is a big substantive change. The member said the federal amendment allows a complaint to be amended after service of an answer or after service of a Rule 12 motion. The member said the current rule allows a complaint to be amended before a response was served, and also allows an answer to be amended because no responsive pleading is required for an answer. The member said the 2009 federal amendment allows an answer or complaint to be amended once as a matter of course 21 days after it is
served, or a complaint can be amended within 21 days after service of an answer or a motion to dismiss the complaint. The member thought the rule was working fine and no change needed to be made.

The motion to amend CARRIED.

Mr. Plambeck MOVED to amend page 196, line 14, to replace “should” with “must.”
Mr. Hoy seconded. The motion to amend CARRIED 12 to 4.

Mr. Plambeck MOVED to restore the original language on pages 196-197, lines 19-38. Mr. Hoy seconded.

Staff explained that the Committee had already approved the form and style amendments on lines 19-38 at the January 2008 meeting. The amendments have not been adopted by the Supreme Court because the Committee was going to submit the rules to the Court after form and style amendments were made to all of the Civil Rules.

The motion to amend FAILED.

Judge McLees MOVED to delete the term “But” on line 31. Judge Schneider seconded. Motion CARRIED.

Judge McLees MOVED to amend page 199, line 65, to retain the term “forth.” Judge Herauf seconded. Motion CARRIED.

Mr. Plambeck MOVED to amend page 199, line 68, to delete “in” before “stating.”
Judge Herauf seconded. The motion to amend CARRIED.

Staff explained that the proposed amendments to Rule 56 were based on the time period amendments made to the federal rules. Staff also explained other 2009 amendments
made to the federal rule for the Committee’s consideration.

Judge McLees MOVED to approve the amendments to Rule 56. Judge Herauf seconded.

A member asked about the 34-day and 30-day time periods on page 258, lines 29 and 30 and whether those periods should be changed to a time period that is a multiple of 7 days. Staff said amendments were made to time periods less than 30 days. Time periods over 30 days were left alone.

The motion to approve the proposed amendments to N.D.R.Civ.P. 56 and to send the
rule to the Supreme Court as part of the Civil Rules Package CARRIED.

The Chair explained that Rule 59 was on the old business of the agenda and there was also a time change made to the rule under new business.

Mr. Quick MOVED to approve the time period amendments to Rule 59. Mr. Boschee seconded.

The members agreed to discuss both the old business and the time period amendments

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at the same time.

The motion to approve the time period amendments was WITHDRAWN.

Staff explained that the proposed amendments to Rule 59 were based on the time period amendments made to the federal rules. Form and style amendments were also carried
over from the January meeting. At the January meeting, staff was instructed to research the phrase “arrived at by chance.” Staff explained that the phrase is also used in N.D.R.Ev. 606 and there is North Dakota case law mentioning the phrase. SeeMinto Grain, LLC v. Tibert,
2009 ND 213, ¶ 35, 776 N.W.2d 549; Erickson v. Schwan, 453 N.W.2d 765, 770 (N.D.
1990). Staff explained a “verdict arrived at by chance” includes flipping a coin, drawing out of a hat, or a quotient verdict.

There was a motion pending from January made by Judge McLees to approve the proposed form and style amendments to Rule 59. Judge McCullough seconded.

Judge Herauf MOVED to approve the time period amendments to Rule 59. Mr. McGee seconded. The motion to amend CARRIED.

Mr. Hoy MOVED to restore the phrase “or order that a new trial be had” on page 272, line 30. Mr. Quick seconded. The motion to amend CARRIED.

The motion to approve the proposed amendments to N.D.R.Civ.P. 59 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.

Staff explained that the proposed amendments to Rule 68 were consistent with the federal form and style amendments and intended to make the rule more easily understood and

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to make style and terminology consistent throughout the rules. Staff said subdivisions (a) -
(d) are very similar to the federal rule, but subdivisions (e) - (g) are not contained in the federal rule; therefore, form and style amendments were proposed. Staff explained the proposed amendments retained the existing language of the rule regarding offer of settlement, which was discussed at the January meeting. Staff also said that amendments were proposed based on the time period amendments made to the federal rules.

There was a motion pending from January made by Mr. Boschee to approve the
proposed amendments to Rule 68. Judge Herauf seconded.

Judge Nelson MOVED to approve the proposed amendments made to Rule 68 after the January meeting. Mr. Quick seconded.

A member said the rule might read better if it was structured differently. The member suggested that “Offer of Settlement” remain as subdivision (a), “Tender of Money in Lieu
of Judgment” remain as subdivision (b), and “Confession of Judgment” remain as subdivision (c). The proposed amendments should then be broken down into paragraphs under each subdivision. The member said the rule would read better that way.

The member said the phrase “except in a proceeding to determine costs” should be added to the end of the sentence on page 291, line 44. The member also said the 14-day
requirement should be added to subdivision (b) regarding “Tender of Money” to be consistent with subdivision (a).

Staff was directed to make the amendments suggested above for the Committee’s
discussion on Friday morning.

Staff explained the amendments were made to Rule 68 based on the suggestions from Thursday. The rule was renumbered, “at least 14 days before the trial begins,” was added to line 38 after “may,” on line 41, “within 14 days” was added after “accepted,” and on line 46, “in any proceeding” was replaced with “except in a proceeding to determine costs.” The
explanatory note was also amended.

A member commented on the 14-day time period on line 30. The member said in a bifurcated trial, on a punitive damages case, proceedings to determine punitive damages could begin the day after a verdict is returned. The member said there is not always 14 days between the time when liability is determined but the extent of liability remains to be
determined. The member thought 14 days was too long of a time to make an offer of
settlement before a hearing to determine the extent of liability.

Mr. Plambeck MOVED to amend line 30, to replace “14” with “one.” Judge Kleven
seconded.

A member asked if there were other types of hearings where 14 days before hearing was enough time to make an offer of settlement. A member said a common scenario is when a party admits liability but a damages settlement cannot be reached, so a trial or hearing is scheduled to determine damages. The member said in this case there is usually more than
14 days before the hearing to determine damages.

A member said maybe it would be better not to have a specific time period, but to have a reasonable time period that is already stated in the rule. A member said using only a reasonable time standard might be too vague.

A member said the rule might not be referring just to damages after liability is determined. For example, in a comparative negligence case, a party may admit liability, but you would still need to determine what the liability was, whether it was 30 percent or 65 percent. A member said the rule was probably drafted before there was comparative fault.

The motion to amend FAILED.

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Mr. Plambeck MOVED to amend lines 29 and 31, to add “or damages” after the phrase “extent of liability.” Ms. Ottmar seconded.

A member asked what “extent of liability” now means with the addition of “or damages.” A member said a party could admit fault, but deny they were 100 percent at fault,
so a trial would be had to determine the fault of others. A member said a Rule 68 offer of settlement would be unworkable if a party admitted to being 65 percent at fault, but did not offer a dollar amount. It would be difficult for a plaintiff to accept that if there is no dollar amount.

A member said the current rule uses the phrase “amount or extent of liability.”

Mr. Plambeck MOVED to amend the motion to lines 29 and 31, to add “amount or”
before the term “extent,” and to delete the phrase “or damages.” Ms. Ottmar seconded. The motion to amend the motion CARRIED. The motion to amend CARRIED.

Mr. Plambeck MOVED to amend lines 30-31, to delete the phrase “within a reasonable time, but,” line 31, to replace “14” with “7” and line 32, to add the phrase “or as otherwise ordered by the court” after the term “liability.” Judge Nelson seconded.

Mr. Plambeck MOVED to amend line 38, to replace “the defendant” with “any party,”
line 39, to replace “plaintiff” with “other party,” line 39, to replace “the plaintiff” with “that other party,” line 41, to replace “plaintiff” with “offeree,” line 43, to replace “defendant’s” with “offeror’s,” and line 44, to replace “defendant” with “offeror.” Mr. McGee seconded. Motion CARRIED.

A member asked whether the terms “plaintiff” and “defendant” would need to be changed in subdivision (c) Confession of Judgment. A member said there is no action with
a confession of judgment, so there would not be any crossclaims or counter claims to bring in other parties. The member said “plaintiff” and “defendant” would be appropriate terms to use.

The motion to approve the proposed amendments to N.D.R.Civ.P. 68 and to send the rule to the Supreme Court as part of the Civil Rules Package CARRIED.

The Chair said there were several appellate rules that just had time changes based on the federal time period amendments. The Chair said it might be more efficient to consolidate
motions on the rules in which there are only time changes.

Staff explained that the proposed amendments to Rules 26, 2.2, 10, 12, 25, 27, and 30 were based on the time period amendments made to the federal rules. Staff said the amendments made to Rule 26 were similar to the amendments made to N.D.R.Civ.P. 6 on computing time.

The motion to approve the proposed amendments to N.D.R.App.P. 26, 2.2, 10, 12, 25, 27, and 30 and to send the rules to the Supreme Court as part of the Annual Rules Package
CARRIED.

Staff explained that the proposed amendments to Rules 3.2, 7.1, 8.3, and Appendix
A were based on the time period amendments made to the federal rules. Staff also explained some minor form and style amendments were made. For example, “shall” was replaced with “must” and “adverse party” was replaced with “opposing party.”

The motion to approve the proposed amendments to N.D.R.Ct. 3.2, 7.1, 8.3, and Appendix A and to send them to the Supreme Court as part of the Annual Rules Package
CARRIED.

Staff explained that the proposed amendments to Rule 2.1 were based on the time
period amendments made to the federal rules. Staff also noted the 3-day time limit in regard to filing briefs when applying for a temporary stay in subdivision (e). Staff said the Committee may wish to amend that time period. Staff said in a mental health appeal, the hearing must be held within 14 days after the filing of a notice of appeal.

Judge Herauf MOVED to approve the amendments to Rule 2.1. Judge McLees seconded.

A member asked how this would affect the other rules in light of the time changes that are being made. A member said using “business days” would be an exception to the general
rule of counting every day.

The Chair said sometimes briefs in mental health appeals are received the day before hearing.

Without objection, Mr. Plambeck amended the motion to delete “business” and insert “excluding weekends and legal holidays” after “days” on lines 25 and 26.

A member asked about the purpose of the time limit in the rule. The member said the purpose is most likely to give the Supreme Court some time to read the briefs. The Chair said that reply briefs are filed in mental health appeals, and sometimes the briefs come in on the morning of the hearing.

The motion to amend CARRIED.

The motion to approve the proposed amendments to N.D.R.App.P. 2.1 and to send the rule to the Supreme Court as part of the Annual Rules Package CARRIED.

Staff explained that the proposed amendments to Rule 4 were based on the time period
amendments made to the federal rules, and on other 2009 amendments made to the federal rules. Staff said the proposed amendment to Rule 4(a)(3)(B)(ii), on line 29, changed the phrase “judgment altered or amended” to “judgment’s alteration or amendment.”

Mr. Quick MOVED to approve the amendments to Rule 4. Judge Herauf seconded.

The motion to approve the proposed amendments to N.D.R.App.P. 4 and to send the rule to the Supreme Court as part of the Annual Rules Package CARRIED.

Staff explained that the proposed amendments to Rule 28 were based on the time period amendments made to the federal rules. Staff said in paragraph (i)(3), line 65, the
deadline for an appellant to serve and file a reply brief if there is less than 14 days before argument was changed from three to seven days before argument. Staff said the Committee may wish to change the seven day time period if that is too big of a change.

Mr. Quick MOVED to approve the amendments to Rule 28. Judge Nelson seconded.

A member said a reply brief might not be able to be filed within seven days before argument.

A member asked if Rule 28 and Rule 2.1 were the only rules that would contain the weekend and holiday exception. Staff said those would be the only rules. The member said it might be easier to make the time period five days rather than have the “excluding weekends
and holidays” language.

Mr. Quick MOVED to amend the motion to line 65, to delete “excluding weekends and legal holidays” and replace “3” with “5.” Mr. Boschee seconded. The motion to amend the motion CARRIED. The motion to amend CARRIED.

A member said Rule 2.1 should also be changed to remove the “excluding weekends and legal holidays” language and change the time period to five days.

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The motion to approve the proposed amendments to N.D.R.App.P. 28 and to send the rule to the Supreme Court as part of the Annual Rules Package CARRIED.

Staff explained that the proposed amendments to Rule 31 were based on the time
period amendments made to the federal rules. In subdivision (a), line 8, the deadline for an appellant to serve and file a reply brief if there is less than 14 days before argument was changed from three to seven days before argument.

Judge Kleven MOVED to approve the amendments to Rule 31. Mr. Hoy seconded.

Mr. Hoy MOVED to amend page 362, line 8, to replace “7” with “5.” Mr. Dunn seconded. Staff was also instructed to amend the explanatory note. Motion CARRIED.

The motion to approve the proposed amendments to N.D.R.App.P. 31 and to send the rule to the Supreme Court as part of the Annual Rules Package CARRIED.

Staff explained that the proposed amendments to Rule 45 were based on the time
period amendments made to the federal rules.

Judge Nelson MOVED to approve the amendments to Rule 45. Mr. Hoy seconded.

A member said some other changes needed to be made to stay consistent with the amendments made to Civil Rule 6.

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Judge Nelson MOVED to amend

(1) page 367, to delete lines 38-40;

(2) page 368, line 52, to insert “Made Electronically” after “Service” and to
insert “by” before “Commercial;”

(3) page 368, line 54, to insert “electronically” after “made” and insert “by”
before “third-party;” and

(4) page 368, to delete the sentence on lines 55-56 beginning with “Service
by” and replace it with “For purposes of computation of time, any document electronically served must be treated as if it were mailed on the date of transmission.”

Judge Nelson MOVED to delete lines 39-42 on page 417. Mr. Quick seconded. The motion would delete subparagraph (c)(2)(B) of the rule.

A member said there is no reason for a state’s attorney to read the duplicate original warrant verbatim to a magistrate or judge when issuing a warrant over the phone. The member said that part of the rule is outdated now because state’s attorneys are able to scan
and email documents to a magistrate or judge, and the judge is able to look at the document while speaking with the state’s attorney. The member said many warrants are issued over the phone and it is a nuisance for the state’s attorney to read a duplicate verbatim back to a judge.

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A member said this provision of the rule is used when a judge or magistrate is unable to look at a document over email and the entire communication is done over the phone. A member said paragraph (c)(3), Warrant by Electronic Transmission, seems to cover warrants issued by email or other electronic means.

The motion to amend was WITHDRAWN.

Mr. Quick MOVED to amend page 417, line 29, to replace “14” with “ten,” and to make the same amendment to line 21 of Form 10. Mr. Hoy seconded.

A member said all of the other time changes dealt with service, filing, and establishing deadlines for parties. The member said the amendment that was approved earlier would give law enforcement four additional days to serve a search warrant. The member said probable
cause could become stale after 14 days, so a constitutional objection could be made. The member said 14 days would be a long time to serve a search warrant. Staff said under the federal rule, the time to serve a search warrant is 14 days.

Staff explained that the proposed amendments to Rule 8.5 were based on the time period amendments made to the federal rules. Staff said the Committee may also want to
amend the two-day time period in subdivision (c) to file an answer and financial affidavit before the initial hearing.

Mr. Quick MOVED to approve the amendments to Rule 8.5. Judge Kleven seconded.

At the January meeting, staff was directed to research statutory procedure on injunctions and restraining orders, and incorporate the procedures into Rule 65. Staff said that most of the statutory procedure is contained in Chapters 32-05 and 32-06 of the North Dakota Century Code.

A member said if the statutes are going to be superseded, the Committee should determine the policy behind the statutes. The member said the statutes seem to be anachronistic. The member said perhaps the federal rule could be used as a model and try to figure out what items from the statutes need to be retained. The member said using the federal rule would provide a body of case law for research purposes. The member said under the state statutes, a temporary restraining order can be in effect for up to six months, but
under the federal rule, a temporary restraining order is in effect for ten days. The member said doing this would be a lot of work.

A member said the language of the statutes was also inconsistent. The statutes discuss petitions and applications when attempting to obtain a restraining order or injunction. The rules of procedure do not use the terms “petition” and “application;” rather, “complaint” and “motion” are used.

A member said it would be interesting to see what other states do.

A member asked whether it was the intention of the Supreme Court to solely occupy the area of procedure. The Chair said that in general, the Supreme Court has the constitutional power to enact rules of procedure. The Chair said sometimes it is difficult to determine what is procedural and what is substantive. The Chair said the Court is not looking for any conflicts with the legislature on the issue of procedure.

A member said the procedure needs to be simplified and uniform, so whether one is seeking a writ of prohibition, a writ of mandamus, or an injunction, the procedure should essentially be the same.

Staff was instructed to redraft the rule using the federal rule as a model, while trying to retain some of the statutory procedure. Staff was also instructed to research the legislative
history of the statutes to try to determine the policy behind the statutes. Staff was also instructed to research other states’ laws on injunctions and restraining orders. Mr. Boschee, Judge Reich, and Mr. Plambeck agreed to provide some assistance to staff in redrafting the rule.

At the January meeting, staff was instructed to research Rule 66 to try to figure out the purpose of the rule. Staff researched Rule 66 along with Fed.R.Civ.P. 66 and other states’ rules on receivers. Staff said Rule 65 is similar to Minnesota’s rule on receivers. Staff said receivers are also governed by N.D.R.Ct. 8.1 and N.D.C.C. ch. 32-10. Staff

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explained that the proposed amendments to Rule 66 were consistent with the federal form and style amendments and intended to make the rule more easily understood and to make style and terminology consistent throughout the rules.

Staff explained proposed Rule 12.1 is based on the new Federal Rule 12.1 that went into effect on December 1, 2009. Staff said the proposed rule is coordinated with proposed Civil Rule 62.1.

The Chair said this issue does come to the Supreme Court. If the Court knows a motion has been filed with the district court that might impact the appeal, the Court will do one of two things. The Court will either remand while retaining jurisdiction over the appeal, or it will dismiss the appeal and send it back to the district court. The Chair said this rule
would allow a trial judge to give an indication of what their ruling might be on the underlying motion.

Members questioned how a trial court’s indication of how it might rule would be helpful. A member said the purpose of the rule is hard to understand.

Mr. Boschee MOVED to table discussion of the new rule until the September meeting. Judge Reich seconded. The motion to table CARRIED.

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The Chair said the next meeting is September 23-24, 2010, in Bismarck.